Karnataka High Court
Mahadevi W/O Bamanna Fulari vs Ahmed Hussain And Anr on 18 October, 2021
Author: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF OCTOBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MFA.No.200771/2019 (MV)
C/W
MFA.NO.202418/2018 (MV)
IN MFA.No.200771/2019
Between:
Mahadevi w/o Bamanna Fulari
Age: 53 Years Occ: Household work
R/o: Jevaragi
Now residing at Kannur
Tq: & Dist: Vijayapura-586 101.
... Appellant
(By Sri Koujalagi Chandrakant Laxman, Advocate)
And:
01. Ahmed Hussain s/o Moinuddin Sagari
Age: Major Occ: Business and owner of
the Truck No.KA-39-4674
R/o: 10/3/87/1 Noorani Mohella
Razvi road, Aland
Dist: Gulabarga-585 107.
02. The Branch Manager
National Insurance Co. Ltd.,
S. S. Front Road,
Vijayapura-586 101. ... Respondents
(By Smt. Preeti Patil, Advocate for R2;
R1 served)
2
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, 1988 praying to modify
the judgment and award dated 27.07.2018 passed in
MVC.No.1083/2016 on the file of Court of the Principle
Senior Civil Judge and CJM and Motor Accident Claim
Tribunal No.V, Vijayapura At Vijayapura and allow this
appeal to grant the compensation amount Rs.14,54,960/-
only as claimed by the Appellant Before this Court and
etc.,
IN MFA.No.202418/2018
Between:
The Branch Manager
National Ins. Co. Ltd.,
S.S. Front Road,
Vijayapura
(Now represented by authorized
Signatory, Hubli)
... Appellant
(By Smt. Preeti Patil, Advocate)
And:
01. Mahadevi w/o Bamanna Fulari
Age: 52 Years Occ: Household work
R/o: Jevaragi,
Now residing @ Kannur
Tq & Dist: Vijayapura-586 101.
3
02. Ahmedhussain s/o Moinuddin Sagari
Age: Major Occ: Business & Truck owner
R/o: 10/3/87/1
Noorani Mohalla
Razvi ROad, Aland
Dist: Kalaburagi-585 101.
... Respondents
(By Sri. Koujalagi Chandrakant, Advocate for R1;
R2 served)
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, 1988 praying to allow the
above appeal by setting aside the impugned judgment and
award dated 27.07.2018 in MVC.No.1083/2016 passed by
the Prl. Senior Civil Judge and CJM and Motor Accident
Claims Tribunal No.V at Vijayapura.
These appeals coming on for Admission this day, the
Court delivered the following:-
JUDGMENT
MFA No.200771/2019 is filed by the claimant under
Section 173(1) of the Motor Vehicles Act, 1988 (for short
'M.V.Act') while MFA No.202418/2018 is filed by the
insurance company under Section 173(1) of the M.V.Act
aggrieved by the judgment and order dated 25.07.2018
passed in MVC No.1083/2016 on the file of Principal Senior
Civil Judge (CJM) and Motor Accident Claims Tribunal No.V
at Vijayapur (for short 'Tribunal').
2. Facts leading up to filing of the present appeal
in brief are that, on 27.07.2014, at about 5.00 p.m.,
deceased Bamanna Fulari was proceeding by walk near the
land belonging to one Vidyachand, situated at Akkalkot to
Jeur road, at that time, a lorry bearing registration No.KA-
39/4674 driven by its driver in a rash and negligent
manner, came from backside and dashed the deceased by
causing the accident. Due to the impact, deceased
sustained severe injuries and succumbed to the same.
3. Thereupon, the claimant being the wife of the
deceased filed a claim petition under Section 166 of the
M.V.Act seeking compensation on the grounds that the
deceased was aged about 55 years and was earning
`15,000/- per month doing coolie work; that the deceased
was the only earning member of the family and was
contributing his earning to the maintenance of the family
and that the untimely death of the deceased has caused
financial and emotional distress to the family hence,
sought for compensation.
have appeared through their respective counsel and filed
written statement. Respondent No.1 in the written
statement denied the petition averments, age, income and
occupation of the deceased. It is contended the
compensation claimed was baseless and imaginary one. It
was further contended that the vehicle was insured with
the respondent No.2 and the policy was valid on the date
of the accident and the liability, if any, has to be fastened
on respondent No.2 - insurance company. Hence, sought
for dismissal of the claim petition.
5. Respondent No.2 filed written statement and
while denying the petition averments contended that the
deceased was the resident of Maharashtra and accident
has taken place in Solapur district and that the respondent
is the resident of Kalaburagi, as such raised the issue with
regard to the jurisdiction. It however admitted that the
vehicle in question was insured with it. It denied the age,
income and occupation of the deceased. It is further
contended that the accident in question was caused not on
account of the negligent driving of the driver of the
offending vehicle. It denied that the proximate of cause of
death of the deceased was on account of the accident. It
is further contended that the liability of the insurance
company is subject to the terms and conditions of the
insurance policy. Hence, sought for dismissal of the claim
petition.
6. Based on the pleadings of the parties, the
Tribunal framed issues and recorded evidence. The
claimant being the wife of the deceased examined herself
as PW.1 and exhibited four documents marked as Exs.P1
to P4. No witness has been examined on behalf of the
respondent - insurance company except marking the
insurance policy as Ex.R1.
7. On evaluation of evidence, the Tribunal held
that the accident in question had occurred due to rash and
negligent driving by the driver of the offending vehicle,
resulting in death of the deceased. Consequently, held
that the claimant being the widow of the deceased entitled
for total compensation of `5,45,040/- together with
interest at 9% per annum and directed the respondent
No.2 to deposit the compensation amount within a period
of 30 days from the date of the order. Aggrieved by the
same, the claimant is before this Court seeking
enhancement of the compensation while the insurance
company is before this Court seeking reduction of
compensation.
8. The learned counsel for the appellant/claimant
reiterating the grounds urged in the appeal memorandum
submitted that the deceased was earning `15,000/- per
month from his coolie work. However, the Tribunal has
erred in assessing the notional income of the deceased at
`8,000/- per month. He further submitted that the grant
of compensation towards loss of dependency, loss of
estate, loss of consortium and funeral expenses was on the
lower side and same require enhancement. He submitted
that the age of the deceased being 55 years at the time of
the accident, addition of 10% needs to be given towards
future prospects in terms of the law laid down by the Apex
Court in the case of NATIONAL INSURANCE COMPANY
LTD. VS. PRANAY SETHI [(2017) 16 SCC 680].
Hence, he seeks for allowing of the appeal by enhancing
the compensation.
9. On the other hand, the learned counsel for the
appellant - insurance company reiterating the grounds
urged in the appeal memorandum contended that though
it is claimed by the claimant that the deceased was earning
`15,000/- per month, no acceptable material evidence is
placed regarding his income. Referring to the postmortem
report at Ex.P4, learned counsel for the appellant
submitted that the age of the deceased has taken note in
Ex.P4 is 69 years and the claimant has not produced any
document to justify the age of the deceased being 55
years. Hence, the age of the deceased is to be taken as
69 years and no addition under the head of future
prospects required to be granted. She further submitted
that the interest granted at 9% is on the higher side and
same has to be reduced to 6%. She also submitted that
grant of compensation under the conventional heads is on
the higher side and contrary to the law laid down by the
Apex Court. Hence, she seeks for reduction of the
compensation.
10. Heard the learned counsel for the parties and
perused the records.
11. The only question that arises for consideration
is:
"Whether the claimant has made out a
case for enhancement of compensation and
whether the insurance company has made out
a case for reduction of compensation granted
by the Tribunal?"
12. The accident in question resulting in death of
the deceased is not in dispute. The FIR at Ex.P1, spot
panchanama and the charge sheet at Exs.P2 and P3
evidenced the fact of accident resulting in death of the
deceased. The postmortem report at Ex.P4 reveals that
the death of the deceased was on account of the injuries
sustained in the road traffic accident. Though, it is
contended on behalf of the claimant that the deceased
being a coolie was earning `15,000/- per month, no
material evidence has been produced to justify the said
claim. The Tribunal however has assessed the notional
income of the deceased at `8,000/- per month. This Court
in the absence of any evidence with regard to the income
of the road traffic accident victims takes into consideration
the chart prepared by the Karnataka State Legal Services
Authority. As per the chart, the notional income of the
victim of the road traffic accident for the year 2014 is
assessed at `7,500/- per month. Even in the instant case,
accident occurred on 27.07.2014 and the deceased who
was working as a coolie, not having produced any
document with regard to the income, this Court is of the
considered view that the notional income of the deceased
needs to be reassessed at `7,500/-. The Tribunal has
deducted 1/3rd of the income towards personal and living
expenses of the deceased. The same is maintained as just
and proper considering the facts and circumstances of the
matter. Though it is contended on behalf of the claimant
that the deceased was aged about 59 years at the time of
the accident requiring 10% addition towards future
prospects thereof, no material is produced with regard to
the age of the deceased. As observed by the Tribunal in
paragraph No.21 of the impugned judgment, the
postmortem report at Ex.P4 discloses the age of the
deceased as 69 years. In the absence of any contra
material, the said age as mentioned in Ex.P4 needs to be
taken as correct. Thus, taking the age of the deceased as
69 years, there may not be any scope for adding any
future prospects. The proper multiplier applicable is '5'.
Thus, the calculation of loss of dependency would be
`3,00,000/- (7,500x12x5x2/3rd).
13. In terms of the law laid down by the Apex
Court in the case of MAGMA GENERAL INSURANCE
COMPANY LIMITED VERSUS NANU RAM ALIAS
CHUHRU RAM AND OTHERS [2018) 18 SCC 130]
which clarified in the subsequent judgment of the Apex
Court in the case of UNITED INDIA INSURANCE CO.
LTD., VS. SATINDER KAUR @ SATWINDER KAUR &
ORS. [2020 SCC ONLINE SC 410], the claimant being
the widow is entitled for `40,000/- towards spousal
consortium and loss of love and affection, `15,000/-
towards loss of estate and `15,000/- towards funeral
expenses. Thus, the claimant is entitle to total
compensation of `3,70,000/- instead of `5,45,040/- as
follows:
Heads By Tribunal By this Court
Loss of dependency `3,20,040/- `3,00,000/-
Loss of estate `1,00,000/- `15,000/-
Spousal consortium `1,00,000/- `40,000/-
Funeral expenses `25,000/- `15,000/-
Total `5,45,040/- `3,70,000/-
14. Considering the facts and circumstances of the
case that the claimant being the widow not having any
other support having lost her only earning member of the
family, this Court is of the considered view that the
interest awarded at 9% by the Tribunal be maintained as
just and proper. Thus, the claimant is entitled to interest
at 9% per annum on the reduced compensation as above.
15. In the result, the appeal filed by the claimant
is dismissed and the appeal filed by the insurance
company is partly allowed. Order of the Tribunal is
modified to that extent.
The insurance company is directed to deposit the
award amount within six weeks from the date of receipt of
a certified copy of this judgment.
The amount in deposit is ordered to be transmitted
to the Tribunal. The difference amount, if any, shall be
adjusted before the Tribunal.
Sd/-
JUDGE
Srt
